David
Ballegeer owns and operates a trucking and excavation
company. JUMF ¶ 1. His brother Francis Ballegeer owns
several hundred acres of property adjacent to the Green River
in Henry County, Illinois. Id. at ¶ 3. At some
time prior to 1976, David Ballegeer claims, [2] the previous
owner of the property had built a two earthen berms, or
levees, on the property “on top of the farm land,
” AMF ¶ 40, at what the parties identify as Site 4
and Site 5, id. at ¶¶ 33-34. See
Pfs.' Notice of Intent 6, Compl. Ex. A, ECF No. 1-1.
However, the levees were not, to the Ballegeers'
knowledge, constructed before 1972. Agreed Pretrial Order 4,
¶ 45, ECF No. 119-1. In 1976, the Green River flooded,
washing out one of the levees, which the Ballegeers rebuilt.
Id. at ¶ 35. Beginning in 1980 and continuing
until 1984, the Ballegeers constructed a new levee out of
earth that spanned the entire riverine length of the
property. Id. at ¶¶ 48-51. Sometime after
1985, David Ballegeer began bringing concrete generated by
his company down to the property. JUMF ¶¶ 4, 6.
This waste concrete, previously used for such domestic
architecture as driveways, garage floors, and housing, was
pushed onto the banks of the Green River to shore up the
levees, id. at ¶ 7, AMF ¶ 65, 70-71,
because over the years, the banks of the Green River had
eroded to meet the levees, AMF ¶ 66. The concrete placed
there included asphalt and rebar. Over the years, the
Ballegeers have added more concrete at various points along
the river and levee in response to flooding, adding brick and
concrete slabs at several locations, totaling additions of
hundreds of linear feet of concrete and other construction
waste. Concrete and rebar ended up in the river, as well as
dirt resulting from the creation and maintenance of the
levee. The Ballegeers assert that their artificial concrete
scree, both atop and at the base of the levee, known as
riprap, is structurally necessary to maintain the levee and
protect the property from flooding. AMF ¶ 73.

Neither
of the Ballegeers ever received authorization from the United
States Army Corps of Engineers (“Corps”) to
create or maintain the levee, or received any kind of permit
under the CWA.

Plaintiffs
filed this lawsuit on July 19, 2012, alleging, inter alia, in
their first two claims for relief, that Defendants had
discharged concrete, rebar, dirt, and other pollutants on the
banks and bed of the Green River in violation of the CWA.
Compl. ¶¶ 53- 62. Both sides moved for summary
judgment, ECF Nos. 36, 61, on a number of grounds, most of
which are no longer at issue. Relevantly here, Plaintiffs
moved for summary judgment on their first two claims for
relief, arguing that the placement of concrete and other
materials described above was an illegal discharge of a
pollutants pursuant to 33 U.S.C. § 1311(a), and that it
was not exempted from the statute by any permit. See
Mar. 26, 2015 Order 22, ECF No. 88. Defendants agreed that
the concrete and rebar they had discharged were pollutants
within the meaning of the CWA, but argued that it was
permitted to discharge these materials nevertheless under the
authority of either of two “nationwide permits, ”
or of the CWA's statutory maintenance exception, 33
U.S.C. § 1344(f)(1). Id. at 22-23. The Court
determined that Defendants' concrete placements were not
authorized by either of the nationwide permits, id.
at 23-26, but declared that it could not determine from the
evidence available at that time whether Defendants'
placement of concrete could qualify as maintenance of the
levee under § 1344(f)(1), and thus be exempted from the
CWA's ban on the emission of pollutants. Mar. 26, 2015
Order 27. The Court elaborated that this was so because it
was not possible to determine what the “original fill
design” of the levee had been, and thus whether the
placements of concrete were maintenance of that levee.
Id.

Based
on the Court's ruling, the parties prepared for a trial
on this limited question only-whether the otherwise-illegal
placements of concrete and other waste materials next to and
in the Green River were exempted from the prohibitions of the
CWA by the maintenance exception. Agreed Pretrial Order 4-7,
¶¶ 1-14. (Plaintiffs' other remaining claim was
voluntarily dismissed. Proposed Pretrial Order 46, ECF No.
93.) However, Plaintiffs argued for the first time in their
trial brief that the Corps had promulgated regulations
limiting the maintenance exception to maintenance of
structures constructed prior to 1972, or to levees that had
received construction permits. Pls.' Trial Br. 3-5. They
also argued that this limitation was inferable from the
language of the maintenance exception itself, and had been
recognized by other federal courts. Id. In response
to the new, potentially dispositive argument, the Court
vacated the looming jury trial and ordered another round of
summary judgment briefing on the applicability of the
maintenance exception. Jan. 29, 2016 Minute Entry. The fruit
of this order was borne in the form of the motions currently
before the Court.

DISCUSSION

Plaintiffs
seek summary judgment on their two remaining claims, arguing
that Defendants' concrete placement is not covered by the
CWA's maintenance exception (or any other exception, but
the maintenance exception is the only one that remains at
issue). Mot. Summ. J. 11, 12-15. Plaintiffs argue that Corps
regulations and the language of the maintenance exception
itself require the structures maintained under the exception
to predate the passage of the CWA in 1972 or have
subsequently been permitted. Id. Because Defendants
concede neither condition is met, Plaintiffs claim the
maintenance exception cannot apply. Id. In the
alternative, Plaintiffs argue that Defendants' cannot
show their concrete placements were for the purpose of
maintenance of an existing structure, as they must have been
under the maintenance exception. Id. at 11,
15-24. Defendants respond that the CWA does not
require maintained structures to predate 1972 or be
permitted, Resp. Mot. Summ. J. 24-32, ECF No. 124, and that
their concrete placements were for the purpose of maintaining
the levee, without exceeding the scope of its “original
fill design.” Id. at 32-46.

I.
Legal Standard on a Motion for Summary Judgment

Federal
Rule of Civil Procedure 56 provides that a court “shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-50 (1986). A genuine dispute of material fact exists
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting
Anderson, 477 U.S. at 248); see also Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994)
(“The court [at summary judgment] has one task and one
task only: to decide, based on the evidence of record,
whether there is any material dispute of fact that requires a
trial.”).

The
party seeking summary judgment must base its motion on record
evidence, Fed.R.Civ.P. 56(c) (listing acceptable kinds of
evidence), or at least point out the record's lack of
evidence supporting its opponent's claims or defenses on
issues where the adverse party bears the ultimate burden of
proof, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Andrews v. CBOCS West, Inc., 743 F.3d 230,
234 (7th Cir. 2014). To defeat a properly supported motion,
the non-moving party must respond with “evidence of
specific facts creating a genuine dispute.” Carroll
v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012). When
evaluating a motion for summary judgment, “the party
opposing the motion gets the benefit of all facts that a
reasonable jury might find, ” Loudermilk v. Best
Pallet Co., Inc., 636 F.3d 312, 314 (7th Cir. 2011), as
well as the benefit of all inferences a reasonable trier of
fact could draw from those facts, id. at 315.

II.
The CWA

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The CWA
prohibits &ldquo;the discharge of any pollutant&rdquo; into
federally protected waters without a permit from the Corps.
33 U.S.C. &sect;&sect; 1311(a), 1344(a). &ldquo;The discharge
of a pollutant&rdquo; is defined broadly to include
&ldquo;any addition of any pollutant to navigable
waters[3] from any point
source.&rdquo;[4] &sect; 1362(12). The CWA defines
&ldquo;pollutant&rdquo; broadly to include not only
traditional contaminants but also solids such as
&ldquo;dredged spoil, solid waste . . . biological materials,
. . . rock, sand . . ..&rdquo; Id. at &sect;
1362(6). The CWA authorizes that Secretary of the Army,
acting through the Corps, to issue permits for the discharge
of dredged or fill materials into navigable waters.
Id. at &sect; 1344(a). The Corps may proceed via a
formal notice and comment process to designate specific
disposal sites for the discharge of dredged or fill material,
id., but is also authorized to issue via regulation
&ldquo;general permits, &rdquo; for which no application is
necessary, and which categorically allow certain discharges
of dredged or fill material that have &ldquo;only minimal
adverse environmental effects . . . .&rdquo; Id. at
§ 1344(e)(1). The promulgation of the permits themselves
requires notice and comment, but once issued, activities may
fall ...

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